The Spanish Government pledges itself to carry out in the archipelago of Sulu the stipulations contained in Articles I, II, and III of the protocol signed in Madrid on March 11, 1877, viz.: (1) Commerce and direct trading by ships and subjects of Great Britain, Germany and the other powers are declared to be and shall be absolutely free with the archipelago of Sulu and in all parts thereof, as well as the right of fishery, without prejudice to the rights recognized to Spain by the present Protocol, in conformity with the following declarations: (2) The Spanish authorities shall no longer require ships and subjects of Great Britain, Germany and the other powers, going freely to the archipelago of Sulu, or from one point to another point in the world, to touch, before or after, at any specified place in the archipelago or elsewhere, to pay any duties whatsoever, or to get a permit from said authorities, who, on their side, shall refrain from obstructing or interfering in any way with the above mentioned trade.
It is understood that the Spanish authorities shall in no way and under no pretense prevent the free importation and exportation of all sorts of goods, without exception, save at such places as are occupied, and in accordance with Declaration 3, and that in all places not occupied effectively by Spain, neither the ships and subjects above mentioned nor their goods shall be subject to any tax, duty or payment whatsoever, or any sanitary or other regulation. (3) In the places occupied by Spain in the archipelago of Sulu, the Spanish Government shall be empowered to establish taxes and sanitary and other regulations, while said places are effectively occupied; but Spain pledges herself, on her part, to provide in such places the offices and employees necessary to meet the requirements of commerce and the application of said regulations. It is however expressly understood that the Spanish Government, which is resolved to impose no restrictive regulations in the places occupied by it, pledges itself voluntarily not to establish in said places taxes or duties exceeding those provided in the Spanish tariffs or in the treaties or conventions between Spain and any other power. Neither shall it put into force in said places exceptional regulations applicable to the commerce and subjects of Great Britain, Germany and the other powers. In case Spain should occupy effectively other places in the archipelago of Sulu, and provide thereat the offices and employees necessary to meet the requirements of commerce, the Governments of Great Britain and Germany shall not object to the application of the rules already stipulated for places occupied at present. But in order to avoid the possibility of new claims due to the uncertainty of business men in regard to the places which are occupied and subject to regulations and tariffs, the Spanish Government shall, whenever a place is occupied in the Sulu archipelago, communicate the fact to the Governments of Great Britain and Germany, and inform commerce at large by means of a notification which shall be published in the Official Gazettes of Madrid and Manila. In regard to the tariffs and regulations stipulated for places which are occupied at the present time, they shall only be applicable to the places which may be subsequently occupied by Spain six months after the date of publication in the Official Gazette of Madrid.
It remains agreed that no ship or subject of Great Britain, Germany and the other powers shall be required to call at one of the occupied places, when going to or coming from a place not occupied by Spain, and that they shall not be liable to suffer prejudice on that account or on account of any cla.s.s of merchandise addressed to an unoccupied place in the archipelago.
V
The Government of her Britannic Majesty pledges itself to see that there is entire freedom of commerce and navigation, without distinction of flags, in the territory of North Borneo administered by the "British North Borneo Company."
If the Governments of Great Britain and Germany do not refuse their adhesion to the present protocol within fifteen days from this date, or if they notify their acceptance before the expiration of said period, through their undersigned representatives, the present declarations shall then come into force. Done at Madrid the 7th of March, 1885.--Seal.--(Signed) J. Elduayen.--Seal.--(Signed) C. Solms.--Seal.--(Signed) R. B. D. Morier.
APPENDIX XXI
DECREE OF THE GENERAL GOVERNMENT IN REGARD TO PAYMENT OF TRIBUTE BY SULUS, MARCH 1, 1894 [298]
Office of the Governor-General of the Philippines, Manila, March 1, 1894.
In view of the obligation incurred by the Sultan of Sulu by virtue of which the Moros of all the Sulu archipelago have to pay from the first day of January of next year, one real each, as a tribute of va.s.salage; and since it is necessary to organize this service in a regular manner and in harmony with the customs of the races living there, I decree the following:
1. The Sultan of Sulu shall direct at once all the Datus and Chiefs of the Moro rancherias [299] to make up lists of the names of the inhabitants composing each aggregation, giving therein, besides the names, the status of each individual.
2. These partial lists shall be fused in one single general census which the Sultan of Sulu shall deliver to the politico-military governor of that archipelago before October 1, of the current year.
3. The interpreters of Jolo, Siasi, Tata"an, and Bangao shall a.s.sist the Sultan in the work of making up these lists and shall translate them into Spanish; and for this extra work they shall receive the allowances designated below, the amounts being deducted from the total proceeds of the liege-money above referred to.
Allowances
To the interpreter of Jolo P20 per month.
To the junior linguist of Jolo P 6 Do.
To the interpreter of Siasi P 8 Do.
To the interpreter of Tata"an P 8 Do.
To the interpreter of Bangao P 8 Do.
4. As soon as the lists are completed and have been examined by the politico-military governor of Sulu, certified copies shall be sent to this office.
5. The collection of the tribute shall be made by means of certain special cedulas, which in due time will be furnished to the Sultan for distribution, who will collect the amounts paid in and deliver them over in specie at the office of the politico-military governor of Sulu.
6. The total proceeds from the said tribute, after deducting the amount of the allowances to the interpreters, shall be devoted for the present to the development of the establishments of Jolo, and especially to the construction of roads.
To be communicated.
Blanco.
APPENDIX XXII
ROYAL COMMUNICATION RELATIVE TO THE RIGHTS OF FOREIGNERS ON THE PEARL FISHERIES OF SULU [300]
Manila, December 25, 1895. His high Excellency the Minister of Colonial Affairs.
Excellent Sir: In compliance with the Royal order communicated under date of the 23rd of October last, I have the honor to send to your Excellency a copy of the previous record of investigations transmitted by the office of this General Government, together with the report of the office of the secretary, the remittance of which your Excellency requests.
The inquiry formulated by the politico-military governor of Sulu, arising out of a resolution of the fishery board of the naval station relative to the order prohibiting foreign subjects from engaging in the pearl fisheries in the waters of the Sulu archipelago, did not call for a speedy resolution nor a close study, it being sufficient to bring the matter to the knowledge of your Excellency without entering deeply into the question involved, in order not to prejudice the resolution of the same, leaving to the supreme judgment of his Majesty"s Government the entire appreciation of its reach and consequences, as the only authority acquainted with the demands of our international relations and the influence thereon of a decision in regard to a matter of such recognized importance as is that of the interpretation to be given to Declaration I of the Sulu Protocol of May 11th of 1877, contained in Article IV of the Protocol between Spain, Germany, and Great Britain, signed in Madrid on March 7th, 1885:--hence the brevity of the data contained in the communications above referred to and even the forbearance of this office from expressing a concrete opinion (in any case, not called for) in regard to a question as vital as it is complex. But circ.u.mstances, which are always superior to every will and every calculation, now make prompt action necessary, and not only forbid any delay, but impose upon this General Government the duty of emitting an opinion which shall complement the data furnished by the office of the secretary of the same, which data were less extensive and explicit than they would certainly have been had not a respect for the free initiative of the Supreme Government acted as a restraining influence. The incident arising out of the presence in the city of Jolo of the British subject Mr. H. W. Dalton, from Sandakan, awaiting the arrival of a fleet of boats of light tonnage belonging to the English concern, The Pearling and Trading Co. Ltd., [301] of which he is the representative for the purpose of using the same in the mother-of-pearl sh.e.l.l fishery, which fact I communicated to your Excellency by cablegram on the 3rd of the current month, makes more urgent the sovereign decision in regard to the concrete point as to whether foreign subjects are allowed to engage in the pearl fishery in the archipelago of Sulu.
In the judgment of this office (which has, on various occasions, inspired only by a regard for the best interests of the nation, expressed the opinion that the Sulu Protocol is too prejudicial to the said interests to permit of the points of doubtful interpretation in the same being interpreted liberally), the point in regard to the right of fishery which foreigners lay claim to exercise freely in waters under the jurisdiction of our sovereignty, is not a doubtful one at all, but is entirely contrary to their pretensions. The claims are founded, according to the statements of those who agree with the views which they involve, in Declaration I of the said Protocol of 1877, reproduced in the Protocol of 1885 and in that signed in Rome in the same year, relating to the Caroline and Pelew Archipelagoes.
This declaration runs as follows--ratified by Article IV of the second of these important diplomatic doc.u.ments:
The direct commerce and trade of boats and subjects of Great Britain, of Germany, and of the other powers, is declared, and shall be, absolutely free in the archipelago of Sulu and in all its parts, as also the right of fishery, without prejudice to the rights recognized as belonging to Spain in the present Protocol, in conformity with the following declarations * * *.
III. At points occupied by Spain in the archipelago of Sulu, the Spanish Government may establish imposts, and sanitary and other regulations of whatever kind, during the effective occupation of the said points * * *.
From the transcript it is evident that Spain may regulate the exercise of the right of traffic and commerce, not with the purpose of restricting, and much less of denying, the principle of commercial liberty recognized in Declaration I, but with that of conditioning the exercise of that right in such a way that her own rights as a sovereign nation shall not be infringed. And what she may do in regard to mercantile trade, with greater reason she may and should do in everything referring to the right of fishery, a right which is declared only in general terms, and one of which the protocol does not treat except in making the affirmation of the principle itself, whereas in regard to commerce, it descends to minute details.
And this could not be otherwise, for anything else would be equivalent to impairing the sovereignty of Spain; and this, in an agreement in which this sovereignty is openly recognized and proclaimed, would pre-suppose a contradiction so palpable and absurd that it is not worth while even to discuss it.
Spain, as a sovereign and independent state, holds and exercises her sovereignty not only in her territories and on the coasts of the same, but in her jurisdictional waters, and can, therefore, regulate the exercise therein of any right granted to foreign subjects, and may, even, in the exercise of her sovereignty, prohibit the enjoyment of such right altogether; this is an indisputable principle of international law, though there is nothing to prevent a state from limiting the same in favor of another or other states; but it is a sine qua non condition to this that there shall be an express and clear declaration of her will on this point, and no one can reasonably affirm that Spain has made in the Sulu Protocols, neither in that of 1877, nor in that of 1885, a total or partial surrender of this right in regard to that of fishery; there is, it is true, a declaration in general terms that the fisheries are absolutely free in the archipelago of Sulu; but this absoluteness of the principle is immediately qualified by the condition that it shall be without prejudice to the rights recognized as belonging to Spain in the protocol, and it has already been pointed out that one of these rights--the princ.i.p.al one and that which contains all the others, the right of sovereignty--is proclaimed and recognized at the head of the agreement. Outside this declaration in general terms, there will not be found in all the protocol a provision or regulation referring to the exercise of the right of fishery and much less a concrete and express declaration on the part of Spain that she will permit the exercise thereof freely on her coasts and in her territorial waters. To permit of this a concrete, clear, and definite declaration would be necessary, such as is to be found in the Morocco Treaty, signed on November 30, 1861, Article 57 of which establishes qualifiedly "That Spanish subjects shall have a right to fish along the coasts of the Moroccan Empire;" and even so, in Article 60 of the same treaty, it is stipulated that, in order to facilitate the coral fishery, in which the Spaniards engage on the coast of Morocco, fishers shall pay the sum of 150 Spanish dollars for each coral fishing boat, and that through the representative of Spain they shall request permission from the minister of foreign affairs of His Majesty the Sultan who shall issue the necessary authorization.
From which it may be seen that even in the case of declarations in regard to the right of fishery which are concrete, clear and definite, there is needed, for the free exercise of the same, something more than a declaration in general terms, such as is that contained in the Sulu Protocol of 1877.
Furthermore, it is always customary in international agreements which refer to fishery rights to lay down regulations and provisions which shall regulate the exercise of such rights, as is proved by a mult.i.tude of agreements, among which are: that already cited of Morocco, that of February 18th, 1886, between Spain and France regarding the fishery and navigation of the Bidasoa, in which the right of oyster fishing is restricted, its absolute prohibition being made possible; as also that of 1889 ratifying the preceding one, the Portuguese convention of March 27th of 1893 and the coast police and fishery regulations; as well as that of August 22nd of 1894, in regard to the fisheries in the waters of the Algarbes, etc.; all of which is well known by the ill.u.s.trious Government of His Majesty, and attention is called to it here only in support of the opinion maintained, namely, that the right to authorize, condition, restrict, and even prohibit the engagement in fishery on its coast and in its jurisdictional waters is inherent in the sovereignty of an independent state; and if it has this right in regard to fisheries in general, with greater reason must it preserve and exercise the same in regard to oyster fisheries, by reason of the changes which may be produced in the sea bed, and even for the purpose of preserving the breeding grounds of the precious pearl-sh.e.l.l mollusk, the Avicula Margaritifera, the banks being the property of the nation, and like all its territory, inalienable and non-prescriptible; both so that they shall not be exhausted and that their exploitation may be reserved for the national industry.
From the preceding, written with less detail than would have been the case had the pressure of time permitted, it may easily be inferred that, in the opinion of this General Government, Spain in spite of Declaration I of the Sulu Protocol--perhaps it would be more correct to say, by virtue of that very declaration, the terms of which really determine the meaning of Declaration III and Article I of the Treaty--preserves intact her right as a sovereign nation to restrict, condition, and even prohibit engagement in the oyster fishery on her coasts and in her jurisdictional waters, without further limitations than those which she may deem expedient to self-impose.
Admitting her rights as a sovereign state, there arises a question of a political nature, which the circ.u.mstances above indicated convert into a problem demanding an early resolution.
To what extent should Spain exercise this right?
On this point, the views of the General Government will be expressed as concisely as possible and with the soberness demanded both by the respect due to the high prerogatives of the public authorities and by an ignorance of many of the elements which enter into the question, without a knowledge of which it is difficult to determine to what extent it is expedient to restrict the exercise of the right to engage in the oyster fisheries which foreign subjects claim to exercise freely in the Sulu archipelago, a pretension which this General Government regards as entirely opposed to the rights of Spain and her moral and material interests in the Far East. Our prestige with the Malay races here, our moral influence over these semi-civilized Mohammedan people, who recognize no right or supremacy but that of might, demand that Spain, as a colonizing nation, shall maintain the integrity of her sovereignty and shall not seem to be subjugated to the will of other Powers, as would appear if, in her territories and on her coasts, with the knowledge and permission of her authorities and of her war ships, and without even heeding them, foreigners should perform acts which, like that of engaging in the mother-of-pearl fishery, being contrary to our material interests, cannot be carried out without paying tribute to the Moro sultans and chieftains themselves.